United States v. Medina-Mendoza

528 F. App'x 658
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 24, 2013
DocketNo. 12-3930
StatusPublished

This text of 528 F. App'x 658 (United States v. Medina-Mendoza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Medina-Mendoza, 528 F. App'x 658 (7th Cir. 2013).

Opinion

ORDER

Jose Medina-Mendoza appeals from the concurrent sentences he received for possessing a firearm as an unlawful user of marijuana, 18 U.S.C. § 922(g)(3), and as an alien in the United States without authorization, id. § 922(g)(5). He argues that the district court erred in finding that he perjured himself at trial and, as a result, misapplied an upward adjustment for obstruction of justice. See U.S.S.G. § 3C1.1. That argument is frivolous, but after briefing was finished, the government submitted a letter, see Fed. R.App. P. 28(j), conceding that the district court committed plain error by entering judgment on both § 922(g) counts. We uphold the increase for obstruction of justice but vacate the judgment and remand for the district court to merge the two convictions and reenter the same sentence on one count only.

Police officers went to the home of Medina-Mendoza with a warrant to arrest him for assaulting his former girlfriend. They found Medina-Mendoza hiding in his bedroom closet. After he consented to a search of the bedroom, the officers discovered a 9 mm pistol and two loaded magazines under his mattress. The police also found marijuana, drug paraphernalia, and false identification cards. The gun had been stolen from a store in Janesville, Wisconsin.

After receiving Miranda warnings, Medina-Mendoza gave a recorded statement. He first insisted that he had found the gun, ammunition, and drug parapher[660]*660nalia at a junkyard, but eventually he said “the truth” was that he bought the gun from a Puerto Rican man in a town near Janesville and was “97% sure” it was stolen. He also admitted buying and using marijuana and conceded he is a Mexican national in the United States without permission. In a later interview Medina-Mendoza repeated his story about buying the gun from a Puerto Rican man.

The government charged Medina-Mendoza in separate counts for possessing the 9 mm pistol in violation of 18 U.S.C. § 922(g)(3) and (g)(5). Both counts allege possession of the 9 mm on the day it was discovered in his bedroom. At trial Medina-Mendoza denied buying the gun and instead insisted that it belonged to a friend named Robinson; he explained that Robinson had placed the pistol and magazines under his pillow without him knowing while he was giving Robinson a haircut. (On the defendant’s witness list Robinson’s first name is spelled as “Shanton,” but at trial Medina-Mendoza gave the name as “Shantelle.”) Robinson forgot the gun, Medina-Mendoza continued, and when Robinson telephoned later to alert him about its presence, the defendant hid the gun and magazines under his mattress and told Robinson to retrieve them the next day. The police, though, got there first. When the prosecutor confronted Medina-Mendoza with his previous confessions to the police, he explained that he had lied to the officers because at the time he did not know Robinson’s full name and thus feared that the police would not believe his story. The jury found Medina-Mendoza guilty on both counts.

The day after the guilty verdicts, the prosecutor discovered a voice message that had been left on her office telephone during the trial:

Hi. This is Shanton Robinson. I’m calling on behalf of Jose Medina-Mendoza. He’s trying to pay me to take his case and I don’t want to do it. He is steady having people to call me and asking if I’m going to take the case from him, but I can’t do it because I’m on probation. And he trying to make me say, like, the gun was mine, but it’s not. It’s really his. He just trying to get out. He don’t want to be shaken up, so he trying to make me take a case that’s not mine. So I was just calling to let you know. My name is Shanton Robinson. All right. Thank you.

The prosecutor notified defense counsel that she intended to play the message at sentencing. That message prompted the probation officer who drafted Medina-Mendoza’s presentence report to recommend a two-level upward adjustment for obstruction of justice. The defendant objected that he did not obstruct justice by testifying at trial that Robinson had left the gun in his bedroom.

At sentencing the prosecutor argued that the defendant’s post-arrest confessions, the theft of the gun in Janesville, and the voice message left by Robinson all supported the upward adjustment by establishing that Medina-Mendoza had lied at trial about the gun belonging to Robinson. When the district court asked if Medina-Mendoza objected to the government playing the voice message, defense counsel responded, “I don’t object.” The government played the message, and the court invited defense counsel to comment on it. He did:

The only thing that I can say, Your Honor, and I will say this as an officer of the court because I don’t have a recording, is that I did speak very briefly with Mr. Robinson a few days before trial. He did tell me that it was his gun and that he was coming to testify to such.
Obviously he’s changed his story and I have not been able to reach him since. I [661]*661don’t know if he’s necessarily credible one way or the other and I also don’t know — I guess we’ll never know why the jury found Mr. Medina-Mendoza guilty, whether it was they believed that he procured the firearm in Middleton and in Janesville or whether or not it was this third party’s gun that he simply touched and held, which as the Court indicated and read to the jury, would have constituted possession.

Neither party called Robinson to testify or said that he had been subpoenaed.

The district court found that Medina-Mendoza had perjured himself at trial concerning the source of the gun. The judge reasoned that the defendant’s trial testimony differed from his recorded statements to law enforcement and was contradicted by the voice message. The court applied the increase under § 3C1.1 and adopted the probation officer’s remaining guidelines calculations, which yielded an imprisonment range of 27 to 33 months. On each count the court sentenced Medina-Mendoza to 30 months in prison followed by a year of supervised release, with the sentences running concurrently.

Medina-Mendoza raises a single claim in his appellate brief: that the district court erred in applying the 2-level upward adjustment for obstruction of justice. The government disagrees with that contention but, on its own, concedes that the entry of separate convictions and sentences on the two § 922(g) counts was error. See United States v. Bloch, 718 F.3d 638, 642-43 (7th Cir.2013); United States v. Parker, 508 F.3d 434, 440 (7th Cir.2007).

In the district court Medina-Mendoza did not challenge his two convictions as multiplicitous. But it was plain error for the district court to sentence him more than once — even to concurrent sentences— because the § 922(g) counts are based on his single possession of the same gun, and the second conviction is presumed to have collateral consequences. See Bloch, 718 F.3d at 642-43; Parker, 508 F.3d at 439-41. For example if Medina-Mendoza violates the conditions of his concurrent terms of supervised release, he would be subject to a total of four years reimpris-onment instead of two. See 18 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Dinga
609 F.3d 904 (Seventh Circuit, 2010)
United States v. Young
613 F.3d 735 (Eighth Circuit, 2010)
United States v. Ali
619 F.3d 713 (Seventh Circuit, 2010)
United States v. Snyder
635 F.3d 956 (Seventh Circuit, 2011)
United States v. Andes-Mar Pereira Barbosa
906 F.2d 1366 (Ninth Circuit, 1990)
United States v. Adegboyega Akitoye
923 F.2d 221 (First Circuit, 1991)
United States v. John M. Hubbard, III and Jerry Conrad
929 F.2d 307 (Seventh Circuit, 1991)
United States v. David P. Johnson and Ainsley Richards
997 F.2d 248 (Seventh Circuit, 1993)
United States v. Ojiabo Ifeanyi Onumonu
999 F.2d 43 (Second Circuit, 1993)
United States v. Peter Charles Acuna
9 F.3d 1442 (Ninth Circuit, 1993)
United States v. William Eskridge, Jr.
164 F.3d 1042 (Seventh Circuit, 1998)
United States v. Warren G. Griffin, Jr.
310 F.3d 1017 (Seventh Circuit, 2002)
United States v. Lynn M. Redditt
381 F.3d 597 (Seventh Circuit, 2004)
United States v. Francis T. Deutsch
403 F.3d 915 (Seventh Circuit, 2005)
United States v. Jeanette Grigsby
692 F.3d 778 (Seventh Circuit, 2012)
United States v. John Bloch, III
718 F.3d 638 (Seventh Circuit, 2013)
United States v. Raplinger
555 F.3d 687 (Eighth Circuit, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
528 F. App'x 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-medina-mendoza-ca7-2013.